Citation Nr: 9824333
Decision Date: 08/12/98 Archive Date: 07/27/01
DOCKET NO. 96-25 331 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Entitlement to service connection for a musculoskeletal
disability, including arthritis, including as the result of
herbicide exposure.
2. Entitlement to service connection for a back disability,
including as the result of herbicide exposure.
3. Entitlement to service connection for lymphogranuloma
inguinale, left groin, including as the result of herbicide
exposure.
4. Entitlement to service connection for a testicular
disorder, including as the result of herbicide exposure.
5. Entitlement to service connection for migraine headaches,
including as the result of herbicide exposure.
6. Entitlement to service connection for an eye disability,
including as the result of herbicide exposure.
7. Entitlement to service connection for porphyria cutanea
tarda, including as the result of herbicide exposure.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran had active service from July 1968 to July 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of August 1994.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he developed the
disabilities at issue as a result of his exposure to
herbicides, including Agent Orange, while he was in Vietnam.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that The veteran has not
submitted evidence of a well-grounded claim for service
connection for a musculoskeletal disability, including
arthritis, a back disability, lymphogranuloma inguinale, left
groin, a testicular disability, migraine headaches, or an eye
disability
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's claim has been obtained by the
originating agency.
2. The veteran's musculoskeletal complaints have not been
shown, by competent evidence, to relate to a disability of
service origin.
3. Arthritis was first shown more than one year after
service.
4. There is no evidence linking back complaints shown at
separation from back complaints reported subsequent to
service.
5. The veteran does not currently have lymphogranuloma
inguinale.
6. A disability of the testicles has not been shown to be of
service origin.
7. There is no competent evidence relating migraine
headaches to service, or to a complaint of headaches noted at
separation.
8. The veteran had a refractive error during service.
9. Eye disorders shown subsequent to service have not been
shown to be related to service.
10. A musculoskeletal disability, including arthritis, a
back disability, lymphogranuloma inguinale, left groin, a
testicular disability, migraine headaches, and an eye
disability are not recognized by the VA as causally related
to exposure to herbicide agents used in Vietnam.
11. A direct causal connection between a musculoskeletal
disability, including arthritis, a back disability,
lymphogranuloma inguinale, left groin, a testicular
disability, migraine headaches, or an eye disability and
exposure to herbicide agents used in Vietnam has not been
demonstrated.
CONCLUSION OF LAW
The veteran has not submitted evidence of a well-grounded
claim for service connection for a musculoskeletal
disability, including arthritis, a back disability,
lymphogranuloma inguinale, left groin, a testicular
disability, migraine headaches, or an eye disability,
including as a result of herbicide exposure. . 38 U.S.C.A. §
5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered with respect to these
issues is whether the veteran has met his initial obligation
of submitting evidence of a well-grounded claim; that is, one
which is plausible. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). In general, a well-
grounded claim for service connection requires competent
evidence of (1) current disability; (2) incurrence or
aggravation of a disease or injury in service; and (3) a
nexus between the in-service injury or disease and the
current disability. Cohen v. Brown, 10 Veteran. App. 128,
136 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995)
A. DIRECT SERVICE CONNECTION
The law provides that service connection may be established
for chronic disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38
C.F.R. § 3.303. If the disability is arthritis, service
connection may be established if the disability was
manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309.
1. Musculoskeletal disability, including arthritis
The veteran has claimed service connection for bone pain,
weakness, loss of strength, fatigability, and numbness in the
arms. Inasmuch as these complaints reflect symptoms, rather
than disease or injury, disability at issue has been
characterized as a musculoskeletal disability, to include
arthritis.
Service medical records do not show any relevant complaints
or abnormal findings. After service, the musculoskeletal
system was reported as normal on a VA examination in February
and March, 1973.
Subsequently, the medical records show various
musculoskeletal complaints on numerous occasions. In May
1973, the veteran reported a history of muscle pain. In May
1974, he complained of leg and arm pain; however, the
diagnosis on that occasion was anxiety reaction. In
September 1974, the veteran was seen for follow-up of a
fractured ankle. X-rays of the hips in October 1980 were
normal. In August 1981, he complained of hip and lower
extremity pain, and in October 1986, shoulder pain of two
weeks' duration was noted. In March 1987, neuralgia and
arthritis were noted. In May 1990, he complained of
radiation of pain into the lower extremities from the back.
A history of chronic pain in the pelvis and legs, with
degenerative bone disease was noted in January 1995, which
the veteran dated to a jump from a second floor window in
1972.
However, absent from these records is any evidence, medical
or otherwise, linking the onset of any such disability to
service. Consequently, there is no evidence of a nexus to
service, and the claim is not well-grounded. Cohen, Caluza,
supra.
2. Low back disability
Although service treatment records do not show any treatment
for back complaints, on the separation examination form, the
veteran checked the box indicating he had "back trouble of
any kind." No abnormal findings were reported; however, it
was noted that a language barrier made his comments difficult
to interpret. On an enlistment examination performed in
January 1971, the veteran indicated that he did not have
"back trouble of any kind." (The veteran did not enter
onto active duty at the time of or after that examination.)
On a VA examination conducted in February and March, 1974,
the veteran's musculoskeletal system was reported as normal.
However, during later years, complaints of back pain were
recorded on several occasions. In January 1977, the veteran
was seen at a VA facility with complaints including back
pain, of days' duration. In August 1981, he complained of
low back pain, and X-rays were interpreted as showing spina
bifida occulta at S-1. In May 1990, he complained of low
back pain, radiating to the right hip and leg, of one month's
duration. In June 1990, X-rays were interpreted as
essentially normal, and chronic low back strain was
diagnosed. Chronic low back pain was also mentioned on
records dated in April 1992 and March 1993. In January 1995,
he was evaluated for back pain. At that time, all
examination findings, including range of motion, were normal.
Although the veteran has complained of back pain on many
occasions over the years, the onset of the chronic low back
pain mentioned in the records has not been ascribed to
service. His complaints of back pain at separation in July
1970 were not repeated on an examination in January 1971, and
a gap of several years in the contemporaneous recording of
back complaints followed. Moreover, the chronic back pain
shown in recent years has not been attributed to service by
the veteran. Consequently, in the absence of lay or medical
evidence of a nexus to service, it is not necessary to
determine the veteran's competence to establish a nexus, and
the claim is not well-grounded. Cohen, Caluza.
3. Lymphogranuloma inguinale, left groin
Service medical records do not reveal any treatment for an
inguinal disorder, although the veteran was treated for
lesions on the penis in November and December 1969 and April
1970. No abnormalities were noted on the separation
examination, and the January 1971 and February to March 1974
VA examinations were similarly devoid of abnormal
genitourinary findings.
In January 1985, however, the veteran was seen in a VA
facility complaining of a painful mass in the left inguinal
area. He stated that he had had left inguinal adenopathy
with fever off and on since he had been in Vietnam. In the
past several months, the mass had become painful, and was
increasing in size. An incarcerated hernia was diagnosed, as
was left inguinal adenitis with recurrence, and he underwent
surgery. The pathology report showed lymphogranuloma
inguinale (bubo), left groin. It should be noted that no
connection between this disorder and subsequently developing
non-Hodgkin's lymphoma, for which the veteran is service-
connected, has been suggested by the medical evidence. He
was discharged in February 1985, and after the follow-up was
completed, no further mention was made until in August 1991,
when he complained of a growth in the groin. On examination,
there were no masses palpable, although he had a rash. There
is no subsequent evidence of the presence of a current
disability. Consequently, in the absence of current
disability, the claim is not well-grounded.
4. Testicular disorder
Service medical records show that the veteran was seen from
November to December 1969 for treatment of a sore on the end
of his penis. The diagnosis was balanitis. In April 1970,
again, lesions on the penis were shown. However, there was
no reference to a disability involving the testicles. Post-
service medical records show that in April 1987, the veteran
was seen with complaints of testicular pain and swelling for
several days, as well as discharge. The impression was acute
prostatitis and epididymitis. In May 1990, right testicle
pain was again noted.
In December 1993, the veteran underwent an echogram of the
scrotum which reportedly showed infection versus neoplastic
right varicocele. On evaluation, the veteran reported that
since about 1975 he had noticed a small mass on the right
teste. He then developed acute epididymitis with fever,
which subsequently improved. Lately, he complained of
tenderness in the right testicle. On examination, the testes
were normal, although slightly engorged from old
epididymitis. However, neither the medical evidence nor the
veteran has related the onset of this disability to service.
Consequently, in the absence of evidence of the disability in
service, as well as the absence of a nexus to service, the
claim is not well-grounded.
5. Migraines
Service medical records show that the veteran reported
"frequent or severe headaches" on the separation
examination conducted in July 1970. In addition, on a
history provided for a VA clinic in May 1973, he reported
headaches. In May 1974, VA treatment records show he
complained of headaches, as well as a number of other
symptoms, and the impression was anxiety reaction.
In October 1990, a complaint of headaches was noted in
association with complaints of ear pain and blurred vision;
ear pathology was to be ruled out. Subsequent records show
numerous complaints of headaches. The veteran related that
he would have headaches for two to three weeks, followed by a
period of a week or two where he would not have any
headaches. The headaches were accompanied by symptoms
including scotoma and nausea, and the diagnosis was migraine
and tension mixed type headaches. On an October 1993 intake
evaluation, however, a mild headache, with no history of
migraine, was reported. In January 1994, in connection with
an evaluation for persistent headaches, a history of
headaches off and on for 20 years was reported. It was noted
that magnetic resonance imaging (MRI) of the head had been
normal. During a hospitalization from December 1994 to
January 1995, a history of migraines for six months was
noted.
Thus, although the veteran complained of headaches at the
time of separation from service, and numerous complaints of
headaches have been noted during the intervening years, with
migraine headaches diagnosed in October 1992, a nexus to
service, or continuity of symptomatology, has not been shown.
In this regard, although the veteran is competent to state
that he has had headaches on and off for many years, a
specific diagnosis of migraines as the cause of these
headaches requires medical expertise. Savage v. Gober, 10
Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. 379 (1995).
In this regard, headaches may be due to any number of causes;
indeed, when migraine headaches were diagnosed in 1992,
tension headaches were diagnosed as well. The record shows
instances in which headaches, as well as other symptoms, were
attributed to suspected ear pathology or to an anxiety
reaction. Further, over the years, the veteran has not
consistently related the onset of his headaches to service.
Because medical evidence of a nexus is required as to this
issue, and because such has not been demonstrated, the claim
is not well-grounded. See Savage, Cohen, Caluza, supra.
6. Eye disability
The veteran claimed entitlement to service connection for an
eye disability identified as irritation in the eyes. Because
the evidence showed diagnoses of pterygium and myopia, the RO
characterized the claim as service connection for each of the
two abnormalities. However, we believe that the issue should
be expressed in terms of service connection for an eye
disability, to better reflect the veteran's contentions.
Service medical records show that in June 1968, the veteran
was seen for refraction for glasses. On the separation
examination in July 1970, myopia was noted.
Following service, in June 1974, the veteran was treated for
complaints including eye irritation. The diagnosis was
bilateral conjunctivitis. On an evaluation and history
obtained in October 1982, it was noted that the veteran did
not wear glasses. He had a pterygium in the left eye. In
October 1990, complaints of blurred vision were noted in
connection with complaints of ear pain. In April 1993, the
pterygium was again noted. On an intake examination in
October 1993, a left eye pterygium was observed, as was a
yellowish ocular conjunctiva. However, there was an adequate
conjunctival reaction, and no gross visual deficit. In June
1994, the veteran underwent an ophthalmalogical evaluation
for complaints of decreased visual acuity. The veteran also
complained of burning in the eyes, particularly when reading
or exposed to sunlight. Although the diagnosis is not of
record, the history did not relate the onset of any of the
veteran's complaints to service.
Myopia is a refractive error, and refractive errors as such
are not diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. § 3.303(c). A pterygium was first
noted many years after service, and no connection to service
has been made, either in lay or medical evidence.
Conjunctivitis shown in 1974 was an acute disorder. A
chronic disability manifested by irritation has not been
shown. No other eye disability of service inception is
suggested by the record. Consequently, the claim is not
well-grounded. See Cohen, Caluza, supra.
B. SERVICE CONNECTION BASED ON HERBICIDE EXPOSURE
The thrust of the veteran's contentions is that the
disabilities at issue developed as a result of his exposure
to Agent Orange. The evidence indicates that the veteran
served in Vietnam during his period of service which extended
from July 1968 to July 1970. The regulations pertaining to
herbicide, including Agent Orange, exposure in Vietnam
stipulate the diseases for which service connection may be
presumed due to an association with exposure to herbicide
agents. 38 C.F.R. § 3.309(e) (1997). The specified diseases
are chloracne or other acneform disease consistent with
chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, acute
and subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, soft-tissue sarcoma, multiple myeloma, and
respiratory cancers, including cancer of the trachea and
larynx. Id. If a veteran who served in Vietnam during the
Vietnam era develops a disease listed as associated with
Agent Orange exposure, exposure to Agent Orange will be
presumed. 38 C.F.R. § 3.307(6)(iii) (1996). In addition,
the Secretary of Veterans Affairs formally announced in the
Federal Register, on January 4, 1994, that a presumption of
service connection based on exposure to herbicides used in
Vietnam was not warranted for certain conditions, or for "any
other condition for which the Secretary has not specifically
determined a presumption of service connection is warranted."
59 Fed. Reg. 341 (1994).
In this case, the veteran has been granted service connection
for non-Hodgkin's lymphoma due to presumed herbicide
exposure; consequently, exposure is presumed. However, none
of the diseases at issue have been found to be presumptively
associated with herbicide exposure. Moreover, the diseases
for which service connection may be presumed have been
identified through extensive scientific studies, and the
veteran's assertion that the disabilities at issue are due to
his exposure to herbicides, pertain to matters which are
beyond his competence as a layperson. See, e.g., Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Consequently, service
connection for any of the disabilities at issue, is not
warranted on a presumptive basis.
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a
veteran from establishing service connection with proof of
actual direct causation. Combee v. Brown, 3 F.3d 1039 (Fed.
Cir. 1994). However, in this case, there has been no
competent evidence establishing the reasonable possibility of
an etiological connection between herbicide exposure and the
development of a musculoskeletal disability, including
arthritis, a back disability, lymphogranuloma inguinale, left
groin, a testicular disability, migraine headaches, or an eye
disability. See, e.g., Grottveit v. Brown, 5 Vet.App. 91
(1993); Espiritu. Consequently, the claim is not well-
grounded. Cohen, Caluza, supra.
C. DUTY TO ASSIST
Because we have determined that the claims for service
connection discussed above are not well-grounded, there is no
duty to assist the appellant in any further development of
his claim as to these issues. Rabideau v. Derwinski, 2
Vet.App. 141 (1992), Murphy v. Derwinski, 1 Vet.App. 78
(1990). Further, the veteran and his representative have
been informed of the elements necessary to complete the
veteran's application, pursuant to 38 U.S.C.A. § 5103(a), and
the veteran has not referred to the existence of any
potentially relevant evidence which has not been obtained.
Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Service connection for a musculoskeletal disability,
including arthritis, a back disability, lymphogranuloma
inguinale, left groin, a testicular disability, migraine
headaches, and an eye disability, including as the result of
herbicide exposure, is denied.
REMAND
Regarding the claim for service connection for porphyria
cutanea tarda, further development is needed prior to an
appellate determination. As previously noted, porphyria
cutanea tarda is a disease which is presumptively associated
with herbicide exposure. 38 C.F.R. § 3.309(e) (1997). On a
VA examination in May 1994, the veteran related that one year
after his return from Vietnam, he had began to have skin
lesions over his body, with loss of hair at the lesions. He
had then been treated by a private dermatologist, and after
the dermatologists death, he had been treated through the VA
with diagnosis of porphyria cutanea tarda. The pertinent
diagnosis was porphyria cutanea tarda by history. A
dermatology examination was also conducted, which noted that
the veteran had a diagnosis of porphyria cutanea tarda since
1971-1972. Although the examination revealed no evidence of
porphyria cutanea tarda, a 24-hour urine collection
uroporphyrin levels was recommended, and it was noted that
the condition could become active again. Consequently, the
veteran should have the recommended tests to determine
whether he has any residuals of porphyria cutanea tarda.
Additionally, the records of treatment should be obtained to
confirm whether he was, in fact, treated for porphyria
cutanea tarda. In this regard, VA records associated with
the claims file do not show such treatment, and a skin
disability treated for several years was not diagnosed as
porphyria cutanea tarda.
Accordingly, to ensure that the VA has met its duty to assist
the claimant in developing the facts pertinent to the claim
and to ensure full compliance with due process requirements,
the case is REMANDED to the RO for the following:
1. The RO should obtain the VA records
identified in the May 1994 dermatology
examination report as reflecting treatment
for porphyria cutanea tarda.
2. The RO should request that the
veteran provide the names, locations, and
dates of treatment of any private
physicians, hospitals, or treatment
centers who provided him with treatment
for porphyria cutanea tarda from 1971 to
1994. After securing necessary
authorizations, the RO should contact
each physician, hospital, or treatment
center identified by the veteran and
request copies of all medical or
treatment records or reports reflecting
treatment for porphyria cutanea tarda.
If private treatment is reported and
those records are not obtained, the
veteran and his representative should be
provided with information concerning the
negative results, and afforded an
opportunity to obtain the records.
38 C.F.R. § 3.159 (1997).
3. The veteran should be afforded an
examination to determine whether he
currently has any residuals of porphyria
cutanea tarda. All indicated studies, to
specifically include the uroporphyrin
level test recommended on the May 1994
examination, should be conducted. The
claims folder must be available for
review by the examiner prior to the
examination, in order to provide an
accurate historical reference.
4. Following completion of the foregoing,
the RO must review the claims folder and
ensure that all of the foregoing
development actions have been conducted
and completed in full. If any development
is incomplete, or further development is
indicated, appropriate corrective action
is to be implemented.
After completion of the requested development, the case should
be reviewed by the originating agency. If the decision
remains adverse to the veteran, he and his representative
should be furnished a supplemental statement of the case and
afforded an opportunity to respond. Thereafter, the case
should be returned to the Board for appellate consideration,
if otherwise in order. While regretting the delay involved in
remanding this case, it is felt that to proceed with a
decision on the merits at this time would not withstand Court
scrutiny.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board's decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).